Audit: DHS Does Not Fully Monitor Use Of Prosecutorial Discretion

AP Photo13 May 2015

The Department of Homeland Security does not fully track its uses of prosecutorial discretion in immigration enforcement matters, the department’s watchdog reveals in a new report.

In recent years, the Obama administration has used prosecutorial discretion as a means of shielding illegal immigrants from deportation via deferred action (or executive amnesty) and policies prioritizing cases for enforcement.

“DHS does not collect and analyze data on the use of prosecutorial discretion to fully assess its current immigration enforcement activities and to develop future policy. Although the Office of Policy is responsible for developing DHS- wide policies and programs, the Department has not required this office to gather or use data to assess the effect of prosecutorial discretion on immigration enforcement activities,” the report, issued by the Department of Homeland Security Office of the Inspector General, reads.

The OIG explained that with the three primary immigration enforcement bodies within DHS — U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS) — receiving $21 billion collectively in annual funding, the department might not be using its resources effectively and could be leaving the door open for security threats.

“As a result, DHS may not be using Government funds as efficiently as possible and may be missing opportunities to strengthen its ability to remove aliens who pose a threat to national security and public safety,” the report reads.

The OIG recommended that DHS put together a plan “to collect, analyze, and report data on the Department’s use of prosecutorial discretion” a recommendation with which the department concurred.

The report also identified several eyebrow-raising details about the administration’s use of prosecutorial discretion. For example, ICE officers revealed they cannot get the full information about an immigrant’s criminal history.

“When applying prosecutorial discretion, ICE field office personnel said they might not always have access to an individual’s criminal history in his or her country of origin. As a result, aliens convicted of or wanted for a felony committed in their home country, but not convicted of a felony or significant misdemeanor in the United States may not be identified as a DHS enforcement priority,” the report reads.

Further, the reports DHS issues annually does not include data on the use of prosecutorial discretion and ICE could not say for sure how many deferred action-eligible immigrants it had released from custody.

“ICE could not provide the number of [Deferred Action for Childhood Arrivals]-eligible individuals it had released, but it recorded its use of prosecutorial discretion,” the report reads. “For example in FY 2014, ICE recorded 12,757 instances in which an ICE officer, after interviewing an individual and determining he or she was not an enforcement priority, used prosecutorial discretion to release the alien. However, according to ICE, the prosecutorial discretion data may not always be accurate and complete. ICE officials noted that field office personnel do not always record their use of prosecutorial discretion because they make these decisions daily and it would be too time consuming to record every occurrence.”

House Judiciary Committee Chairman Bob Goodlatte (R-VA) expressed frustration at the reports findings, calling on the Obama administration to “end its reckless policies.”

“Not only are President Obama’s unilaterally-created immigration policies and programs unconstitutional, their implementation has proved to needlessly place Americans and our country at risk. As confirmed by today’s Inspector General report, the Department of Homeland Security does not track its use of prosecutorial discretion nor does it always conduct thorough background checks on the individuals benefitting from the Administration’s lax policies,” Goodlatte said Wednesday.

“As a result, the American people are left in the dark about the effects of the Administration’s immigration policies and dangerous criminal aliens who have committed a crime in their home country may be able to find amnesty in the United States,” he added.